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Second Appeal from Order No. 379 of 1965, decided on 11th May 1967.
S. 13‑Ejectment‑Landlord having a large family and existing accommodation proved to be inadequate for his requirements Requirement of landlord to get his only other bigger house vacated, held, genuine.
Fazlur Rahman v. Nayeema Khattoon P L D 1963 Dacca 84 rel.
Mst. Almas Begum and others v. Haji Pir Bakhsh and another P L D 1964 Pesh. 278 distinguished.
Hakam Qureshi for Appellant.
Ghulam Muhammad Khan for Respondent.
Date of hearing : 11th May 1967.
This second appeal arises out of the judgment of the learned Additional District Judge, Lahore, dated the 1st of May 1965, who accepted the appeal filed by the respondent and set aside the order of the learned Rent Controller dated the 3rd of June 1964, ordering his ejectment from the house in dispute and directing the appellant‑landord to be put in possession.
2. The facts of the case are that house No. F/382, situated in Bazar Tazabian, Lahore, belongs to Mian Shamas‑ud‑Din, the appellant‑landlord. He filed an application for ejectment under section 13 of the West Pakistan Rent Restriction Ordinance, 1959, on the 28th of June 1962, on the ground that‑
(i) he required the premises for his personal use;
(ii) the tenant committed default in the payment of rent, and
(iii) the tenant was damaging the property.
3. The respondent, Mirza Muhammad Hussain filed his reply on the 6th of December 1962, in which he did not allege any mala fide against the landlord, but denied the relationship of landlord and tenant on the ground that the property in dispute was mortgaged with possession with one Mirza Muhammad Salim who was the person entitled to receive the rent from him. On the same day, the learned Rent Controller framed an issue on this point, but ultimately on the 6th of March 1963, the tenant made a statement accepting the appellant as his landlord.
4. On the 6th of June 1963, the learned Rent Controller directed the respondent to deposit an amount of Rs. 612 as arrears of rent due from the 4th of August 1960 to the 3rd of June 1963, which was to be deposited before the 4th of September 1963, and he further directed that from the 4th of June 1963, onwards, the tenant should deposit monthly rent at the rate of Rs. 18 before the 5th of each month. On the pleadings of the parties, the learned Rent Controller framed the following issues:‑
(1) Whether the respondent paid or tendered rent to the petitioner in time O. P. R.
(2) Whether the petitioner bona fide required the house for the personal use of his son O. P. P.
(3) Whether the respondent has committed such acts which have impaired materially the value and utility of the house O. P. P.
(4) Relief.
5. After recording the evidence of the parties the learned Rent Controller accepted application of the landlord holding that his requirement was bona fide and ordered the ejectment of the tenant directing him to put the landlord in possession of the property within two months from the date of his order. This order was passed on the 3rd of June 1964.
6. Feeling aggrieved by this order, the respondent filed an appeal before the learned Additional District Judge, Lahore, which was heard and decided in favour of the tenant on the 1st of May 1965. The landlord then filed this second appeal against this order of the learned Additional District Judge, Lahore.
7. Mr. Hakam Qureshi, learned counsel for the appellant submitted that he would not press issues Nos. 1 and 3, and he only argued issue No. 2, i. e. "the personal requirement of the landlord".
8. The learned Additional District Judge decided against the landlord regarding his personal requirement as he was influenced from the facts that the landlord had already got a house in the locality which was lying vacant and he intended to mortgage it after its repairs. The other argument which weighed with the learned Additional District Judge was that the landlord got a shop vacated from one of his tenants for the requirement of his son but later on he gave it on rent to some body else.
9. In order to find out the real position, I perused the evidence and find that the house which the appellant got vacated earlier was a small one, therefore, after its repairs he mortgaged the same to somebody in order to secure money for his business. In support of his claim, in addition to his own statement, the landlord produced Khushi Muhammad (P. W. 1) and Mehraj Din (P. W. 2) who are absolutely independent witnesses living in the locality. They have stated that the appellant has a large family. Two of his sons and a daughter are married. He has two wives. He has grand‑children also from both his married sons and daughter. The house is very small and consists of four small rooms. In addition to the present house the landlord admitted that he has three other houses. In one of those houses, his elder son and sister's son are residing. This is the only house which is on rent.
10. On the other hand, the respondent produced Faza Din (R. W. 1) a person who was ejected by the appellant from a shop. He is obviously an interested witness and cannot be relied upon. No other witness was produced by the respondent controverting the bona fide requirement of the landlord. I am satisfied that the requirement of the appellant is genuine and he is entitled to its possession. The house which he got vacated having been mortgaged with possession in order to A boost up his business, no longer remains available with the landord, and the learned Additional District Judge took an erroneous view in the matter. Reliance was placed on Fazluil Rahman v. Nayeema Khattoon (P L D 1963 Dacca 84) in which it was held:‑
"Desire of the landlord to have better accommodation should not be ignored‑‑landlord cannot be precluded from availing better accommodation by utilising his own property provided necessity is bona fide."
11. Learned counsel for the appellant also pointed out that the tenant has committed default for the deposit of rent after March 1966. He moved an application on the 7th of April 1966 before the Senior Civil Judge, Lahore submitting that he had sent money‑order to the landlord for Rs. 36 as rent for the month of March and April 1966, at the rate of Rs. 18 p.m. which was returned to him. A copy of this application is now placed on the record which is marked as Exh. 1. The learned Senior Civil Judge on the same day passed the following order:
"A tenant who does not or cannot pay or tender rent to the landlord must ordinarily remit the same to the landlord by money order and should continue doing so though the same be refused every time. For the purpose of making deposit in the office of the Rent Controller instead of remitting rent by money‑order the tenant must disclose special reason for example that the landlord cannot possibly be found. Thus it is not the wish of the tenant but judicial discretion of the Rent Controller which regulates deposit in his office. I direct the applicant to remit this amount of rent by money order to the landlord and also to remit future monthly rent by money order regularly every month. Coupons of money orders, if refused, should be retained by the applicant. This will save time and expense and will avoid complication."
Unfortunately, the learned Senior Civil Judge by inadvertence passed an order which he was not competent to pass, as a judicial order, under section 13(6) of the Rent Restriction Ordinance, was in existence which could not be reviewed. He even did not send for the file although in the application names of the parties Shamas‑ud‑Din v. Mirza Muhammad Hussain were mentioned.
12. Thereafter, a money‑order was sent on the 31st of March 1966, but in doing so, the default was committed and on 2/3 occasions money‑orders were sent after the fixed date. Learned counsel contended that in view of non‑compliance of the order of deposit of future rent in Court, the tenant has incurred the penalty and his defence should be struck off. There is con siderable force in this submission of the learned counsel. This was, to my mind, a dishonest attempt on the part of the tenant to avoid depositing rent in Court, and in this way he also hood‑winged a judicial officer.
13. Learned counsel for the respondent vehemently argued that the requirement of the landlord is not bona fide and he relied on Mst. Almas Begum and others v. Haji Pir Bakhsh and another (P L D 1964 Pesh. 278). This authority is not applicable to the facts of the case as I have already held that the requirement of the landlord is bona fide. He had, however, no answer to the default which his client committed by not complying with the order of the Court regarding the deposit of future rent.
14. For the reasons given above, I accept this appeal, set aside the order of the learned Additional District Judge, Lahore, and restore that of the Rent Controller ordering the ejectment of the tenant from the house in dispute, with costs.
S.A.H. Appeal accepted.
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